February 12, 2004

Independent news is more important than ever.

Sign up for The Nation Daily and get our hard-hitting journalism in your inbox every weekday.

Thank you for signing up. For more from The Nation, check out our latest issue.

Subscribe now for as little as $2 a month!

Support Progressive Journalism

The Nation is reader supported: Chip in $10 or more to help us continue to write about the issues that matter.

Fight Back!

Sign up for Take Action Now and we’ll send you three meaningful actions you can each week.

Travel With The Nation

Be the first to hear about Nation Travels destinations, and explore the world with kindred spirits.

Sign up for our Wine Club today.

Did you know you can support The Nation by drinking wine?

On February 3 a law enforcement official working with the Joint Terrorism Task Force in Des Moines served a subpoena on Drake University seeking records on its student chapter of the National Lawyers Guild and on a conference the guild had sponsored in November titled “Stop the Occupation! Bring the Iowa Guard Home!” The subpoena sought the identities of the attendees at the conference and the officers of the chapter, meeting agenda, annual reports filed by the chapter and campus police reports on the conference. At the same time, prosecutors subpoenaed several conference participants to testify before a grand jury and obtained a court order barring Drake University from commenting on the subpoena.

When asked why it was investigating an antiwar conference and seeking records on a student group, the government initially said it could not comment, citing grand jury secrecy. After receiving substantial criticism, it reversed course and said it was investigating an incident during a rally that followed the conference, in which a demonstrator tried to climb a National Guard fence. On February 10, after an article appeared in the New York Times, the government backed down and withdrew the subpoenas. When asked why, it resurrected the grand jury secrecy excuse, saying it could not explain. The question remains: Even assuming someone did try to climb a fence, why did prosecutors institute a federal grand jury investigation and subpoena a student group’s officers, meeting records and reports?

Given the government’s swift cave, one might be tempted to dismiss this as an isolated incident of wayward prosecutors. But it’s not. It’s the foreseeable result of policies adopted at the highest levels of the Justice Department. In June 2002, Attorney General John Ashcroft issued guidelines permitting the FBI to attend public meetings of political and religious groups without any indication that a group was considering criminal activity. The FBI previously had to have some reasonable indication of criminal activity before it could employ such tactics–a restriction that stemmed from the abuses of the 1960s and ’70s, when the bureau conducted massive political spying, infiltrated civil rights and antiwar groups and disrupted their lawful activities. In Ashcroft’s view, the notion that the FBI should be limited to looking for crimes is too confining. But if investigations are not focused on federal crimes, what are they going to be focused on? The Drake University students’ lawyers guild chapter?

The answer, apparently, is yes. In October 2003 the FBI issued a “terrorism” bulletin outlining the tactics of antiwar demonstrators, including such subversive activities as using the Internet to raise funds and organize and holding training camps to rehearse demonstration tactics. The bulletin directed law-enforcement agencies to “be alert to these possible indicators of protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism Task Force.”

When Congress enacted the Patriot Act, it included a definition of “domestic terrorism” that critics said could conceivably apply to political demonstrations. Defenders of the government dismissed that charge as hysterical and overblown. But the proof is in the pudding. The Feds maintain the Drake case had nothing to do with the Patriot Act, but when the government institutes federal grand jury proceedings about a student antiwar conference and rally and seeks records on the meeting and its attendees, it suggests either that it doesn’t have enough to do or that it sees monitoring of political dissent as an integral part of the “war on terrorism.”

That a National Lawyers Guild chapter was the focus of the subpoena is all too fitting. In 1989 the FBI settled a lawsuit with the guild in which it admitted to spying on the group for some thirty-five years, including conducting warrantless wiretaps and secret “black bag job” searches of its national headquarters. The guild got this attention because in the 1950s it was one of the few organizations willing to defend the rights of accused Communists. (The ACLU at the time was busy purging itself of Communists–this time around the ACLU helped defend the subpoenaed activists.) Ever since, the guild has defended progressive political protesters, monitored the police during demonstrations and stood up for the right to dissent.

It is possible that the Drake University investigation is an aberration. But it fits all too comfortably within the guidance set forth by Ashcroft in his first Congressional testimony after 9/11. At that time, he warned that dissenters “erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends.” The Joint Terrorism Task Force was apparently listening. And it’s listening still.

David ColeTwitterDavid Cole, national legal director of the ACLU, is legal affairs correspondent for The Nation and a professor at Georgetown University Law Center. He is the author, most recently, of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (April 2016).